Wisconsin Republicans are trying to keep state abortion laws exactly as they were almost 200 years ago, when Zachary Taylor was president.
After Roe v. Wade was overturned, Wisconsin reverted back to its original abortion law, which was implemented in 1849. Under the law, abortions are banned entirely except to save the life of a pregnant person. However, three doctors must agree that the abortion is medically necessary, imposing an unbelievable burden on anyone in a life or death situation seeking the procedure.
Democratic state Attorney General Josh Kaul argued in front of a judge Thursday that Wisconsin should void that law because it has gone unused for so long. He and his team also said the law conflicts with other abortion rules that were implemented much later, such as a 1985 law that only criminalizes abortion post–fetal viability—an already mushy window of time that decreases as neonatal care improves—but with an exception after that to save the life of the pregnant person.
“Women in the state of Wisconsin are not currently able to receive critical health care … because of the very lack of clarity in the law,” said assistant Attorney General Hannah Jurss.
Kaul filed the lawsuit just days after the Supreme Court issued the Dobbs ruling last summer. It is only now making it to the courtroom.
But one of the three Republican district attorneys named as defendants in the case, Joel Urmanski, argued that Kaul doesn’t have legal standing to challenge the ban because it does not affect him personally or his ability to do his job as attorney general. Urmanski had filed a motion to dismiss the suit in December. His lead attorney said Thursday the ban has been able to coexist in “harmony” with newer abortion laws.
Jurss hit back, saying that Kaul needs to know what laws apply in Wisconsin in order to act as the state’s top law enforcement official. “It can’t be that the law says something is illegal and legal at the same time,” she said.
The judge gave few indications of how she was leaning, but the case is widely expected to go to the Wisconsin Supreme Court. Liberals will hold a majority on the court once Justice-elect Janet Protasiewicz is sworn in in August.
Protasiewicz was elected in early April, beating her Republican opponent by a whopping 11 percentage points and flipping the court for the first time in 15 years. She campaigned heavily on her support for abortion rights.